Herald Blogs

Supreme Court upholds FCC on obscenity -- but wait, there's more...

Nobody can say what it really means yet, but the U.S. Supreme Court Tuesday threw out a lower court's decision that the FCC cannot punish broadcasters for so-called "fleeting obscenity." The case stemmed from a couple of naughty words uttered by celebrities during Billboard Music Awards shows broadcast by Fox -- one that starts with an S (Nicole Richie, 2003) and another that starts with F (Richie, same show, and Cher, 2003).

When the FCC fined stations carrying the broadcast, Fox went to court to overturn the punishment. A federal appeals court in New York sided with the network, saying the FCC punishment was "arbitrary and capricious" and violated the standards by which federal regulatory agencies make rules.

The Supreme Court Tuesday specifically rejected that argument Tuesday, ruling 5-4 that the policy against fleeting obscenity was "neither arbitrary nor capricious." But beyond that, the court was badly fractured, with the justices issuing six separate opinions totaling 68 pages. Several suggested that a challenge to the fleeting-obscenity policy based on the First Amendment, rather than regulatory agency procedures, might be successful.

Bottom line: It will take the lawyers some time to figure out the real significance of Tuesday's decision, and we are a long way from the final word on the subject. Ignore all the First Amendment Chicken Littles who say otherwise.